Law vs policy: What next after the High Court's ruling on 'Malaysia Solution'?

It was the decision we had all been waiting for: whether the Government's so-called Malaysia Solution was valid and lawful. Claire Chaffey and Justin Whealing examine the verdict, the reaction

It was the decision we had all been waiting for: whether the Government's so-called Malaysia Solution was valid and lawful. Claire Chaffey and Justin Whealing examine the verdict, the reaction and what happens next.

REVERSAL OF POWER: Refugee law experts say the government needs to take a 'back to basics' approach on asylum seeker processing following the High Court's decision

In what came as a surprise to many - not least of all the Gillard Government - the High Court of Australia last week torpedoed the Government's plans to implement the much-debated Malaysian asylum seeker deal.

The six-to-one judgment (with Justice Heydon dissenting) in M70/2011 v Minister for Immigration and Citizenship & Anor saw Chief Justice Robert French ordering that Immigration Minister Chris Bowen be restrained from sending asylum seekers to Malaysia on the basis that the deal was made "without power and is invalid".

The Court found that under s198A of the Migration Act 1958 (Cth), the Minister could not validly declare Malaysia a country to which asylum seekers could be sent for processing unless it was legally bound by international or domestic law to provide procedures for assessing asylum seekers' need for protection; provide protection for asylum seekers while awaiting determination of their refugee status; and provide protection for those given refugee status until they voluntarily returned home or were resettled in another country.

The Court held that the general powers of removal of "unlawful non-citizens" could not be invoked if the country did not meet those requirements. Malaysia does not meet those stipulations.

In making judgment, however, the Court expressed no view about whether Malaysia meets relevant human rights standards or whether asylum seekers are treated fairly or appropriately.

In what could be considered a scathing rejection of the Government's policy, its plans to send 800 boat arrivals to Malaysia in return for 4,000 refugees over four years, were put permanently on hold.

The reaction

For those opposed to the deal, the High Court's decision could not have been better. The Malaysian Bar immediately welcomed the ruling, with Malaysian Bar president Lim Chee Wee telling Lawyers Weekly he had long been highlighting the plight of asylum seekers in Malaysia.

"The Malaysian Bar, together with civil society bodies and the Malaysian National Human Rights Commission, have regularly highlighted to the Government of Malaysia the suffering of the almost 100,000 asylum seekers in Malaysia arising from the lack of legal and effective protection from indiscriminate prosecution as illegal immigrants, and the lack of basic rights of livelihood, healthcare and education," he said.

"That the High Court of Australia held that Malaysia's legal regime was inadequate must be a reminder to Malaysia of the importance of being a signatory to the Refugee Convention and its Protocol."

Lim said the decision is a "solemn reminder" that for Malaysia to take its rightful place in the international community, it must be a state party to international instruments and recognise and adopt international human rights standards.

"That the High Court of Australia held that Malaysia's legal regime was inadequate must be a reminder to Malaysia of the importance of being a signatory to the Refugee Convention and its Protocol"

Lim Chee Wee, president, Malaysian Bar

The national president of the Australian Lawyers Alliance, Greg Barns, also welcomed the decision and said it sends a clear message that legislators and governments must be cognizant of Australia's international human rights obligations in relation to asylum seekers.

"The decision will bring welcome relief to many asylum seekers who have come to this country seeking a better life and freedom from persecution and fear for themselves and their families," he said.

"It also sends a clear message to government that the courts are the protectors of incursions on the rights of individuals by the executive, particularly when that incursion would result in the individual's safety and security being threatened."

The president of the Law Council of Australia, Alexander Ward, said the decision illustrates the importance of access to judicial review of decisions made under the Migration Act.

"Governments past and present have attempted to restrict rights of judicial review under the Migration Act. The Law Council has continually called for such rights to be restored and for access to legal assistance to applicants to pursue such rights," Ward said.

The lead partner instructing M70's counsel on the matter said he is delighted and relieved by the outcome. Allens Arthur Robinson partner Malcolm Stephens, who worked pro bono on the matter with a team of Allens lawyers, said he was pleased they were able to come up trumps in the matter, especially after so much hard work.

"The team worked extremely hard to prepare this matter for hearing in a very short timeframe," he said. "I don't know how many hours were involved, but I do know that we had lawyers working on weekends and putting in many late nights."

"I don't know how many hours were involved, but I do know that we had lawyers working on weekends and putting in many late nights"

Malcolm Stephens, partner, Allens Arthur Robinson partner

One of the most controversial reactions was that of Julia Gillard, who said the High Court "missed an opportunity" in its rejection of the deal. Gillard also accused Chief Justice French of inconsistencies with regard to his rulings, prompting the Law Council to issue a statement rebuking the Prime Minister.

"It is highly inappropriate to single-out the chief justice for particular criticism," said Ward. "His honour was one of six judges who were in the majority in this case and the legal principles established by the case are very clear."

Professor George Williams, the foundation director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales, defended Gillard's right to speak out, telling Lawyers Weekly that she has a right to speak up as a "disappointed litigant".

"The Prime Minister's comments don't compromise the independence of the judiciary," he said. "She has responded to the judgment, and the importance of courts is that they deliver judgments with reasons and they are all there so people can agree or disagree with them."

What next?

According to one refugee law expert, Australia must get back to basics and begin processing asylum seekers onshore.

Dr Angus Francis, a refugee law expert with the Queensland University of Technology, told Lawyers Weekly that the High Court's decision makes it clear that Australia's international obligations must now be taken seriously.

"I would hope [the decision] makes it clear that our international obligations are the key consideration that has to be taken into account. They are not just another policy consideration," he said.

"I know there are very important competing priorities - such as border security and saving lives at sea - but, at the end of the day, we do have international obligations and they will be taken to the High Court in the context of the Migration Act, and we have to abide by them."

"The decision will bring welcome relief to many asylum seekers who have come to this country seeking a better life and freedom from persecution and fear for themselves and their families"

Greg Barns, president, Australian Lawyers Alliance

Francis said the decision now means the Government will have to rethink offshore processing, but he added that this should not be a particularly difficult exercise.

"This does not require radical new thinking. What is needed is 'back to basics'," he said. "Forget offshore processing. Forget processing on Christmas Island. Assess onshore, on the mainland, according to fair and effective procedures that can determine who is a refugee and who is not."

This, said Francis, will ensure that Australia sets an example for others in the region.

"Australia has to be able to go to the region - to countries like Indonesia and Malaysia -- and say, 'Look, we have in place a system for processing refugee claimants and this is something we'd like to export to the region'. Rather than exporting our refugees, let's export the model for processing them onshore and set an example."

In a forum held at the Law Institute of Victoria following the decision, Julian Burnside QC said he believes it is safe to say that offshore processing is no longer an option for the Government, and said he would support a model whereby asylum seekers are placed in short-term detention while they undertake health and security checks, and are then released into the community while their claims are assessed.

When asked about what will happen in the wake of the decision, Matthew Albert, the lead counsel acting for M70, told the forum he had the "sombre" task of telling his clients that even though they will not be deported to Malaysia, they will still be held in indefinite detention until the Government decides on a new course of action.

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